A bill to amend title 31, United States Code, to provide for the issuance of Buy Back America Bonds.

Mr. President, the pending business is S. 1867, the Defense Authorization Act; is that correct?

Mr. President, Senators are encouraged to come to the floor to offer their amendments this morning. We are going to be here doing business. Senators who have remarks, speeches, proponents of the amendments, opponents of amendments are given an opportunity here today which may be one of the relatively few opportunities that are going to be available.

We will be here the Monday after we return as well before the vote at 5:30 on Monday, November 28, on a judicial nomination, but we will also be here before that time to hear from proponents and opponents of amendments and to have people offer amendments. We are not going to have the whole week, we have been told by the leader, when we come back for this bill, so we are going to have to make additional progress today. We made some progress last night. We cleared some amendments last night. We are going to try to clear some additional amendments this morning and adopt some amendments that can be cleared. We have 155 filed amendments, and we have 31 pending amendments. Again, we are going to try to clear some of those today and adopt some of those today, and we are going to try to do the same on Monday when we return.

Again, I urge that Senators who want to speak on pending or filed amendments, proponents of those amendments, opponents of those amendments, let us know immediately, if you would, whether you wish to speak in support of or in opposition to pending or filed amendments. Obviously, if people want to oppose amendments, then we are not going to clear them if we know about that, but we have to know about that. These are on file. The clerk has the amendments. We know which amendments are pending. The list is available.

The staff is going to be here for the first couple days, at least, next week prior to Thanksgiving. Our staffs will be here to work with staffs of Senators to try to revise amendments that may be open to revision. So that work is going to go on, and we have to use these time periods--today and next Monday and Tuesday--for work on amendments and the Monday we get back for work on amendments because we need to get this bill passed.

This is a critically important bill, and with 155 filed amendments, 31 of which are already pending, we have a lot of work to do. We are going to try to do the very best we can, but we have to get a bill passed and we have to debate some of the very significant amendments which have already been filed and are pending.

So I want to thank my friend from Arizona and see whether he might want to comment on my comments or otherwise.

Mr. President, first of all, I thank my friend and colleague from Arizona, the ranking member, for his comments and for all of his work on the committee. All of our colleagues on the committee have put in a lot of time.

I want to emphasize something he said about the opportunity here for debate--that we have a number of pending amendments, including the amendments on detainees. We are here to hear debate on those or any other amendments today and on Monday. We were here yesterday and had a long debate. As the Senator from Arizona said, we had a lengthy debate, and we were prepared to vote. The supporters were not. That is fair enough. If they want additional time to debate it, we should welcome that. But there is time, there is time today and there is time on Monday when we get back to debate that amendment and those amendments not only on the detainees but on many other issues that are important that are in this bill.

I agree with my friend from Arizona that we should ask the majority leader to make Monday night available for votes after the scheduled vote at 5:30. We need to have votes on amendments. I would hope that amendments that can't be agreed to will be voted on on Monday night after the vote on the judge, which is scheduled for 5:30.

I also agree with the Senator from Arizona about trying to get a limit on the number of amendments. We will try again today to see if we can get a

unanimous consent agreement. I haven't had a chance to talk this morning with the Senator from Arizona, but we will try--and he just has given me an indication that this is fine with him--to see if we can't set a time later on today, maybe at noon or 1:00, for the filing of amendments and to limit amendments to those that are filed by that time.

We are going to try to get that done with a safety valve, which I suggested last night and I think is acceptable to the Republican manager, my friend from Arizona, which is that, in addition to whatever amendments are filed by whatever time we put in the unanimous consent proposal, there be an additional two amendments on each side that would be available to the managers that would need to be relevant--just relevant amendments--to an amendment that is filed or relevant to the bill. I think you would need a safety valve, and people would understand that. Those two amendments would be allocable--two amendments each by the Republican manager and myself, if that is agreeable. It would take unanimous consent, but I think everyone realizes we have to have a universe here that we can work with during the next week.

Mr. President, I will be done in one moment so that our friend from New Mexico can schedule his presentation.

I just wanted to add one additional thing to what the Senator from Arizona said, in addition to agreeing with him. We will be here today and we will be here a week from Monday so that there will be plenty of opportunity to debate these pending amendments or other amendments, and people need to know we are going to be seeking votes on these pending amendments if we can't clear them or work them out. There will be an opportunity for debate before the vote.

One other comment; that is, I will have a detailed statement addressing the detainee issue a little later on this morning. It will address some of the statements that are incorrect and misleading which were in the administration's statement on this subject. Also, some of the statements of our colleagues need to be addressed and, I believe, corrected. Because this is a complex issue it is important to know what is in the bill and what is not in the bill. If it is properly characterized and if it is properly stated, it is still complex, but to misstate it or overstate it or to mischaracterize what is in our bill just confuses an issue which needs to be debated on its merits and not confused. It is complicated enough without obfuscation and confusion about what is in the bill on detention or other matters and what is not in the bill.

I yield the floor.

Let me notify Senators on our side that we are more than willing to do that same courtesy for them if they would let our staff know at the cloakroom this morning. We can do the same thing for Senators on our side as the Senator from Arizona properly did for Senators on his side.

And if I may, doing what the Senator from Arizona just did will also facilitate, hopefully, the acceptance of a unanimous consent request that there then be a cutoff as I described at perhaps noon or 1 o'clock today so we can know what the universe is and begin to whittle it down.

I yield the floor.

I thank the Senator from New Mexico for his remarks. I agree with him; it was a lively debate. I also agree with him it is to be desired that kind of debate occurs more often in the Senate. The Senator from New Mexico has been very active in the effort to have these kinds of debates by rules changes, which would make these kinds of debates a lot more likely, and by other mechanisms.

To make an inquiry, did the Senator from New Mexico restore the regular order to the Levin-McCain amendment? I missed that.

Mr. President, I thank the Senator from New Mexico again for the comments, but also tell him how very much impressed I have been right from the first day I heard him with his openmindedness on subjects. It is very important that we keep open minds, and he has shown just how to do that. We appreciate that on an issue this complex, particularly on the Defense bill.

I suggest the absence of a quorum.

Mr. President, first, let me thank the Senator from Rhode Island, my dear friend, for all the work he does on our committee and the other work he does for the Senate. He is an invaluable member of our Armed

Services Committee, and I just want to not let this moment pass without acknowledging that.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendments be temporarily set aside to call up, on behalf of Senator Bingaman, amendment No. 1117; and on behalf of Senator Gillibrand, amendments Nos. 1187 and 1211.

Before the clerk reports, I also ask unanimous consent that Senator Gillibrand be added as a cosponsor of amendment No. 1092, the Levin- McCain counterfeit parts amendment.

Mr. President, I ask for the regular order on the Levin- McCain amendment.

Mr. President, I note the absence of a quorum.

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

Mr. President, in a short while I hope we will have, and expect that we will have, some amendments that have been cleared on both sides that we are going to be able to offer and hopefully adopt.

What I thought I would do now is make a fairly lengthy statement about statements which have been made relative to the detainee provisions in S. 1867. First, I want to comment on the statements that were made in the Statement of Administration Policy--this is a so- called SAP. So when I refer to SAP during these comments, and I use that term, it is the acronym which means Statement of Administration Policy.

I am going to first quote exactly from the SAP, and then I am going to

comment and show why these statements I am referring to are inaccurate. From the SAP:

Section 1031 attempts to expressly codify the detention

authority that exists under the authorization for Use of

Military Force.

The authorization for use of military force is referred to as the AUMF. The quote continues:

The authorities granted by the AUMF, including the

detention authority, are essential to our ability to protect

the American people from the threat posed by al-Qaida and its

associated forces, and have enabled us to confront the full

range of threats this country faces from those organizations

and individuals.

Well, Mr. President, given how important the administration says these authorities are, it should be helpful to have them codified so they can stand on the strongest possible footing.

The next quote:

Because the authorities codified in this section [1031]

already exist, the administration does not believe

codification is necessary and poses some risk.

The quote continues:

After a decade of settled jurisprudence on detention

authority, Congress must be careful not to open a whole new

series of legal questions that will distract from our efforts

to protect the country.

The quote continues:

While the current language minimizes many of those risks,

future legislative action must ensure that the codification

in statute of express military detention authority does not

carry unintended consequences that could compromise our

ability to protect the American people.

Well, Mr. President, section 1031 was written by administration officials for the purpose of codifying existing authority. The description of persons covered is identical to the position taken by the administration and upheld in the courts. The provision specifically provides that nothing in the provision either limits or expands the authority of the President or the scope of the AUMF.

It is also worth noting that the SAP does not support the argument made by some Senators that section 1031 creates a new or unprecedented authority. On the contrary, the Statement of Administration Policy, the SAP, acknowledges the provision codifies existing law.

Now, this is hardly surprising since the committee accepted all of the administration's proposed changes to section 1031.

I am continuing to quote from the Statement of Administration Policy:

The administration strongly objects to the military custody

provision of section 1032, which would appear to mandate

military custody for a certain class of terrorism suspects.

This unnecessary, untested and legally controversial

restriction of the President's authority to defend the Nation

from terrorist threats would tie the hands of our

intelligence and law enforcement professionals.

Well, Mr. President, it is interesting that the SAP states the amendment would ``appear to'' mandate military custody. In fact, it does not mandate military custody and does not tie the administration's hands because it includes a national security waiver which allows suspects to be held in civilian custody.

Next quote:

Moreover, applying this military custody requirement to

individuals inside the United States, as some Members of

Congress have suggested is their intention, would raise

serious and unsettled legal questions and would be

inconsistent with the fundamental American principle that our

military does not patrol our streets.

Well, the administration itself asked that we delete limitations in section 1031 on the applicability of detention authority inside the United States that would have excluded U.S. citizens and lawful residents based on conduct taking place inside the United States to the extent authorized by the Constitution. The exact words were ``except to the extent authorized by the Constitution.''

If it is appropriate to authorize military detention inside the United States under section 1031, it is not at all clear what ``serious and unsettled legal questions'' in this narrow category of cases could be raised by requiring such detention subject to a national security waiver. Further, nothing in section 1032 would require or even permit our military to ``patrol our streets.''

Section 1032 applies, by its very term, only to a person ``who has been captured in the course of hostilities'' authorized by the AUMF. The provision has no applicability to a person who has not already been so captured and does not speak to the question of when or where such a capture might be authorized.

The provision does not give the military authority to make arrests or conduct any law enforcement functions inside the United States.

Next quote:

We have spent ten years since September 11, 2001, breaking

down the walls between intelligence, military, and law

enforcement professionals; Congress should not now rebuild

those walls and unnecessarily make the job of preventing

terrorist attacks more difficult.

In answer to that, it is not clear what walls the administration thinks the provision builds. Nothing in this provision limits the participation of law enforcement or intelligence professionals in the interrogation of detainees in military custody or vice versa or the sharing of information.

Next quote:

Specifically, the provision would limit the flexibility of

our national security professionals to choose, based on the

evidence and the facts and the circumstances of each case,

which tool for incapacitating dangerous terrorists best

serves our national security interests.

The provision does not limit the flexibility of the executive branch to choose the appropriate tool for taking on terrorists. On the contrary, the provision expressly directs the President to establish procedures for making determinations of coverage, authorizes the executive branch waiver of military detention requirements where they do apply, and expressly authorizes the transfer of any detainee to civilian custody for trial.

The next quote from the SAP:

The waiver provision fails to address these concerns,

particularly in time-sensitive operations in which law

enforcement personnel have traditionally played the leading

role.

It is not clear why the administration thinks the use of a waiver would be problematic in time-sensitive operations. The need for a waiver is not triggered until the executive branch determines an individual is covered. The President has control over who makes these determinations, how they are made, and when they are made, so the executive branch should not be faced by a determination of coverage for which it is not ready. And even if, for some reason, executive branch officials were not ready to deal with their own determination, the provision specifically provides that a determination of coverage may not be used to interrupt ongoing surveillance, intelligence gathering, or interrogation sessions.

The next quote from the SAP:

These problems are all the more acute because the section

defines the category of individuals who would be subject to

mandatory military custody by substituting new and untested

legislative criteria for the criteria that the Executive and

Judicial Branches are currently using for detention under

AUMF in both habeas litigation and military operations. Such

confusion threatens our ability to act swiftly and decisively

to capture, detain, and interrogate terrorism suspects, and

could disrupt the collection of vital intelligence about

threats to the American people.

The SAP is wrong. Detention under section 1032 is expressly limited to persons for whom detention is authorized under criteria currently used by the executive branch and the courts. The new and untested legislative criteria about which the SAP expresses concern is language narrowing the application of the provision to a small category of those for whom detention is already authorized.

Also, because the provision addresses only the question of whether an individual should be transferred to military custody after capture, it is not clear how it could possibly threaten the ability of executive branch officials to act swiftly and decisively to capture anybody.

Because the provision expressly states it may not be applied to interfere with an ongoing surveillance, intelligence gathering, and interrogations, it is not clear how it could possibly threaten the ability of executive branch officials to interrogate terrorism suspects or disrupt the collection of vital intelligence about threats to the American people.

The next quote from the SAP:

Rather than fix the fundamental defects of section 1032 or

remove it entirely, as the administration and the chairs of

several congressional committees with jurisdiction over

these matters have advocated, the revised text merely directs

the President to develop procedures to ensure the myriad

problems that would result from such a requirement do not

come to fruition.

The administration reviewed the language directing the President to develop procedures and they made several suggestions for improvements to that language. The committee adopted all of the administration's suggestions. The remaining change suggested by the administration, which the committee did not adopt, was a proposal to limit the application of the provision to persons captured abroad. This difference does not constitute a myriad of problems which are complex or hard to understand.

This is the last comment they make on that section:

Requiring the President to devise such procedures concedes

the substantial risks created by mandating military custody,

without providing an adequate solution. As a result, it is

likely that implementing such procedures would inject

significant confusion into counterterrorism operations.

The language referred to was included to address concerns expressed by the administration. That does not in any way constitute an acknowledgment that the concerns were valid. Whether these concerns were valid or not, they have now been resolved by specific language in the revised provision.

Continuing:

The certification and waiver, required by section 1033

before a detainee may be transferred from Guantanamo Bay to a

foreign country, continue to hinder the Executive Branch's

ability to exercise its military, national security, and

foreign relations activities. While these provisions may be

intended to be somewhat less restrictive than the analogous

provisions in current law, they continue to pose unnecessary

obstacles, effectively blocking transfers that would advance

our national security interests, and would, in certain

circumstances, violate constitutional separation of powers

principles. The Executive Branch must have the flexibility to

act swiftly in conducting negotiations with foreign countries

regarding the circumstances of detainee transfers.

The provision is not only ``intended to be somewhat less restrictive'' than provisions that are included in previous authorization and appropriations acts signed by the President, it is less restrictive. Unlike last year's bill, this provision includes a waiver, which allows the administration to proceed with a transfer even if the certification requirements cannot be met.

Congress has expressed strong concerns about recidivism among Gitmo detainees who have been released in the past. It cannot be in our national security interests to ``act swiftly'' if we fail to provide adequate safeguards against terrorists rejoining the fight against us.

In discussions on this issue, administration officials have made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. And the committee agreed to that change.

Section 1034's ban--

And I am now continuing the quote from SAP--

on the use of funds to construct or modify a detention

facility in the United States is an unwise intrusion on the

military's ability to transfer its detainees as operational

needs dictate.

This provision is the same as the provisions included in last year's authorization and appropriations acts which were signed by the President. In discussions on this issue, administration officials made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. The committee agreed to that change.

The next quote from the SAP:

Section 1035 conflicts with the consensus-based interagency

approach to detainee reviews required under Executive Order

No. 13567, which establishes procedures to ensure that

periodic review decisions are informed by the most

comprehensive information and considered views of all

relevant agencies.

Section 1035 does not conflict with the Executive order of the interagency review process established in the Executive order; rather, it requires the issuance of procedures to implement the review process required by the Executive order.

The Executive order states that a Gitmo detainee will not be released if the interagency process results in a unanimous recommendation against release. The Executive order states that a Gitmo detainee will be released if the interagency process results in a unanimous recommendation for release. But it is silent as to what happens if the process does not result in a unanimous recommendation.

The provision in the bill addresses that issue by providing that no Gitmo detainee will be released without the consent of the Secretary of Defense. This does not contradict the Executive order; it is a truism, since nobody can be released without agreement of all of the agencies.

In discussions with the committee, administration officials did not even raise this provision as a priority issue.

Finally, on the Statement of Administration Policy, the SAP:

Section 1036, in addition to imposing onerous requirements,

conflicts with procedures for detainee reviews in the field

that have been developed based on many years of experience by

military officers and the Department of Defense.

The only new requirement imposed by section 1036 is the requirement for a military judge and legal representation for any detainee who will be held in long-term custody. In discussions with the committee, the administration did not object to this new requirement. On the contrary, the only change requested by the administration in this provision was to strike the words ``long-term.'' The committee did not agree to this proposed change because it would have been onerous to impose this requirement in the case of all detainees, including those who are captured and released or held on a short-term basis.

Mr. President, I now would like to move to my comments on some of the statements of the senior Senator from California. The first comment of Senator Feinstein that I wish to address is the one where she said: ``Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force.''

On this one, the committee accepted all of the administration's language changes which were written to ensure that the provision is consistent with the AUMF. The provision specifically states it does not ``limit or expand the authority of the President on the scope of the AUMF.'' The SAP on the provision states that ``the authorities codified in this section already exist'' under the AUMF.

The next quote from the Senator from California is the following. Section 1031:

. . . would authorize the indefinite detention of American

citizens without charge or trial. Do we want to go home and

tell the people of America that we're going to hold them if

such a situation comes up without any review, without any

habeas?

The committee accepted all of the administration's proposed changes to section 1031, and as the administration has acknowledged, the provision does nothing more than codify existing law. Indeed, as revised pursuant to administration recommendations, the provision expressly ``affirms'' an authority that already exists. The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding ``the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.''

The administration asked that this language be removed from the bill. Mr. President, 1031 does not refer to habeas and in no way limits habeas, nor could it. No American can be held in military detention without habeas review and no non-American can be held in military detention inside the United States without habeas. For non-Americans outside the United States, the bill requires the administration to establish review procedures, including, for the first time, a military judge and access to a military lawyer for the status determination.

The next quote of the Senator from California is the following. Under Section 1032:

. . . 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.

Mr. President, Section 1032 does not mandate military custody. It does not

tie the administration's hands because--and this is critically important--it includes a national security waiver which explicitly allows any suspect to be held in civilian custody. Nothing is automatic. The administration would have the discretion to waive military detention and hold a detainee in civilian custody if it decided to do so.

The next quote in the case of Najibullah Zazi:

If the mandatory military custody in the armed service bill

was law--

The committee bill was law--

all of the surveillance activities, all of what the FBI did

would have to be transferred immediately to the military. . .

. Then the government would have been forced to split up co-

defendants, even in cases where they otherwise could be

prosecuted as part of the same conspiracy.

Zazi was a permanent legal resident. His co-conspirators

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.

It is not accurate to say everything the FBI did in the Zazi case would have had to be ``transferred immediately to the military.'' First, it is not at all clear Zazi was covered by the provision because we don't know that he was al-Qaida, and in any event there is an exclusion because he is a lawful resident alien of the United States.

Second, until a coverage determination was made, no transfer would be required and the President would decide how and when that determination would be made.

Finally, even if Zazi were somehow determined to be covered, the requirement could have been waived and Zazi could have been kept in civilian custody in the discretion of the executive branch.

Also, as to this statement that the executive branch would be forced to split up codefendants in the Zazi case, even if he was covered by the provision or in any other case, that is because the provision includes a waiver that would have allowed him to be held in civilian custody from the outset if the executive branch officials decided to do so and also because the provision expressly authorizes the transfer of any military detainee to civilian custody for trial in the Federal courts even without a waiver. So executive branch officials are always able to consolidate cases should they decide to do so in the Federal courts.

The next statement which the Senator made was the following:

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.

Taking the Justice Department at its word, there have been approximately 300 terrorist cases in Federal court over the last 10 years or about 30 a year. One-third of that number would be just 10 cases a year in which the executive branch officials would have to make determinations of coverage and, if necessary, exercise their waiver authority.

Even that number appears to be exaggerated. Cases of attempted al- Qaida attacks on American soil have been highly publicized and receive extensive scrutiny, understandably, in Congress. We are not aware of more than half a dozen cases, total, over the last decade. The reason the debate on this issue always seems to come back to the same handful of cases appears to be there only are a handful of cases that are covered by this provision potentially.

In her next quote:

The administration contends that the mandatory military

custody is unwise because our allies will not extradite

terror 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.

This provision expressly states that the waiver authority may be used to address these concerns and to assure an ally that a suspect will not be held in military custody if transferred to the United States and if that assurance is necessary to obtain that transfer. Administration officials suggested a wording change to preclude misinterpretation of this provision and the committee adopted the very wording proposed by the administration.

The next quote of the Senator from California is that Section 1033:

. . . essentially establishes a de facto ban on transfers of

detainees out of Guantanamo, even for the purpose of

prosecution in United States courts or in other countries.

There is no limitation at all in the bill on the transfer of Gitmo detainees to the United States for trial or for any other purpose. With regard to the transfer to other countries, Section 1033 is less restrictive than current law, which was signed by the President.

The next quote I would address is the following. Section 1033:

. . . requires the Secretary of Defense to make a series of

certifications that are unreasonable and candidly unknowable

before any detainee is transferred out of Guantanamo. Again,

an example, the administration proposed eliminating the

requirement that the Secretary of Defense certified that the

foreign country from whence the detainee will be sent to is

not quote `facing a threat that is likely to substantially

affect its ability to exercise its control over the

individual.'

The same language was included in last year's authorization and appropriations bills that were signed by the President. We added a waiver provision this year to make it easier to transfer detainees. In discussion with the committee, the administration made a single priority request on this issue; that the provision be made a 1-year limitation instead of a permanent limitation, and the committee agreed to that change.

Finally, the last quote of the Senator from California from yesterday that I am going to address is the following:

In March, the President issued an executive order that laid

out the process for reviewing each detainee's case to make

sure that indefinite detention continues to be an appropriate

and preferred course. Section 1035 essentially reverses the

interagency process created by the President's order.

This was the same allegation made by the statement of administration policy. It is erroneous, and I addressed the answer to that allegation in my remarks a little earlier today, relative to the statement of administration policy, the SAP, so I am not going to comment further. But I would direct everyone back to those comments on the statement of administration policy similar to that statement of the Senator from California, which I addressed at that time.

I appreciate the patience of our Presiding Officer. This was a long statement, but I think it is essential we understand there are issues that need to be debated and should be debated, but there is nothing but confusion created on an issue that is already complex when misstatements are made about what is in a bill of the committee and what is not in the bill of a committee.

The words in the committee bill are words that are clear. They need to be debated, but they should not be exaggerated or misinterpreted. This is an important debate. We had a good debate yesterday, and I expect we will complete this debate on Monday so we can vote on these detention provisions and amendments relative thereto of Senator Udall hopefully on Monday night.

I yield the floor.

Amendment No. 1087

Mr. President, let me thank the Senator from Oregon. We are happy to work with him. He is very deeply into these and so many other issues. His contribution is well known to all of us in the Senate. We are happy to work with him on these matters.

Mr. President, before the Chair recognizes our friend from Alabama, let me thank the Senator from New Hampshire not just for her kind and warm remarks, but also for the great contribution she has made to our committee. It has been an extraordinary launch for her, if I may put it that way. I think--and I know our Presiding Officer would agree with me on this because he has been a witness as well--it has been a major contribution.

I thank the Senator. She has the kind of experience and is so committed to the security of this country that the Senator is already venerable as a member of our committee.

I yield the floor.

If the Senator from Alabama, our friend, would yield for one second.

We are then on the regular order; is that correct?

So the regular order is the Levin-McCain amendment; is that correct?

Mr. President, I ask unanimous consent to call up the following amendments, the first four on behalf of Senator Jack Reed, Nos. 1146, 1147, 1148, and 1204; a fifth for Senator Reed, amendment No. 1294; No. 1293, a Levin amendment; No. 1206, a Boxer amendment; and No. 1292, a Menendez amendment; and I then ask unanimous consent that we return to the regular order.

Mr. President, I ask unanimous consent that the pending amendment be set aside and that the following amendments be called up en bloc.

They are, Senator Sherrod Brown, 1259, 1260, 1261, 1262, 1263; Senator Leahy, 1080; Senator Wyden, 1296; Senator Pryor, 1151, 1152; and Senator Bill Nelson, 1209, 1210, 1236, and 1255.

Mr. President, I ask for the regular order after all of those actions are taken.

Mr. President, I ask unanimous consent to call up five amendments en bloc which have been cleared by myself and the ranking member as follows: amendment No. 1071 on behalf of Senator McCain, to require the Secretary of Defense to report on all information with respect to the Evolved Expendible Launch Vehicle Program that would be required if the program were designated as a major defense acquisition program not in the sustainment phase; amendment No. 1086 on behalf of Senators Roberts and Moran, to authorize and request the President to award the Medal of Honor posthumously to CPT Emil Kapaun of the U.S. Army for acts of valor during the Korean War; amendment No. 1106 on behalf of Senator McCain, to require a report on the status of the implementation of accepted recommendations in the Final Report of the 2010 Army Acquisition Review Panel; amendment No. 1140 on behalf of Senator Casey, to require a report by the Comptroller General on the Department of Defense Military Spouse Employment Program; and amendment No. 1219 on behalf of myself, to provide authority to order military Reserves to Active Duty to provide assistance and response to a disaster or emergency.

Mr. President, I ask unanimous consent that the Senate consider the amendments en bloc, the amendments be agreed to, and the motions to reconsider be laid upon the table.

Mr. President, I do believe the Defense authorization bill has been moved in the way more legislation needs to be handled in the Congress. I am confident that is in large part due to the leadership of Senator Levin, who is a professional, skilled lawyer, who knows the big picture and the small details of the legislation. It has been a pleasure to work with him over the years. I have learned a great deal about our defense from him and how legislation is enacted. So I want to express my appreciation for that.

And I thank Senator McCain, who brings a vast knowledge of defense and military issues, and who is courageous in defending what he believes the legitimate interests of the United States are. That has been a real pleasure.

I will join Senator Levin in thanking Senator Ayotte for her leadership. Her contributions to our committee have been immediate, and that is reflected in the fact that Senator McCain has asked her to manage the floor today for him. I also appreciate the Senator's work on the budget and the effort we have made there.

Amendments Nos. 1182, 1183, 1184, 1185, and 1274 en Bloc

Mr. President, I ask unanimous consent to temporarily set aside the pending amendment and call up the following amendments en bloc: amendment No. 1182, dealing with Army brigade combat teams; amendment No. 1183, dealing with the nuclear triad; amendment No. 1184, dealing with naval surface vessels; amendment No. 1185, dealing with missile defense; and amendment No. 1274, dealing with the detention of enemy combatants.

Mr. President, I wish to share a few general comments about where we are. All of us have been confronting, whether we want to or not--I think some of us more realistically than others--the debt situation this Nation faces. We are, indeed, borrowing 40 cents of every $1 we spend. That is an unsustainable path. We have already had 3 consecutive years of deficits exceeding $1 trillion, and we are projected to have another trillion-dollar deficit next year.

The debt under President Obama has now increased by 42 percent in the first 3 years of his term in office. It is an unsustainable course. We have to do better.

The National Defense Authorization Act represents our committee's vision for defense in the future. We have done something about the spending problem America has. As we calculate the numbers, we are down from $548 billion--in actual money spent on the Defense Department last year--to $527 billion this year, an actual reduction, in noninflation- adjusted dollars, of over $20 billion, which represents about a 5- percent reduction, a 4-percent reduction in defense spending.

That is what all of our accounts should be doing. But, indeed, that is not happening. In the other aspects of discretionary spending-- defense being the largest portion of discretionary spending in the Congress--the other agencies and departments are not showing a reduction at all. Indeed, they are showing an increase, even after nondefense discretionary spending increased 24 percent in the first 2 years under President Obama.

Some think the base defense budget has been surging--and it has been increasing over the last decade--but it has increased 84 percent over the past decade. I will note that Medicaid, for example, has increased over 100 percent. Food stamps are now up to $80 billion this year. It is four times what it was in 2001, from $20 billion to about $80 billion.

So defense has not been surging out of proportion, I would suggest, to the other spending programs in our government. In fact, it has been increasing, even in this decade long of war against terrorism, at a rate that is not excessive, in my view. It has been a pretty significant increase under realistic controls and not out of proportion to what we are concerned about. However, it is looking to be hammered a great deal more in the future, disproportionate, again, to what is happening in other spending accounts.

The Defense Department now is working on a total reduction in spending of $489 billion more, which is about 10 percent of what we would expect to spend in the next 10 years. That is because of the Budget Control Act we passed in August that required reductions in spending in discretionary accounts. The choices so far have been to reduce defense spending far more than the other accounts.

In addition, if the deficit committee--the 12 supercommittee members--if they do not reach an accord, we all need to understand there will be an automatic sequester. Many people thought--and I think Senators probably thought--if that were to be done, it would be done across the board in an equal way. Not so. If that happens, $600 billion additional would be taken out of defense, and items such as food stamps, Medicaid, the earned income tax credit, Social Security--all of those would have no reductions. So it would amount to almost a 20- percent reduction in the Defense Department in real dollars over 10 years.

It should not have been that way. The agreement should not have targeted the Defense Department in such a Draconian way. We cannot allow that to happen.

All accounts need to be tightened. Every agency and department has to tighten its belt, including the Defense Department, but not disproportionately so.

Admiral Mullen said, if this were to occur, it would ``hollow us out,'' it could break the Defense Department and our military; so did Leon Panetta, President Obama's Secretary of Defense. He said it was basically an unacceptable situation, and he agreed with Admiral Mullen, who was sitting beside him at the time of that testimony, and in response to questions I asked of him.

When I asked him about it--the hearing was on another subject--he responded with passion, Secretary Panetta did, and expressed deep concern about the course of our Defense Department if these cuts were to take place.

I will quote former Secretary Robert Gates, who served President Bush and President Obama. Recently, he said this:

I think, frankly, the creation of this supercommittee was a

complete abdication of responsibility on the part of the

Congress. It basically says, ``this is too hard for us. Give

us a BRAC. Give us a package where all I have to do is vote

it up or vote it down and I don't have to take any personal

responsibility for any of the tough decisions.'' So now we're

left with this sword of Damocles hanging over the government,

hanging over defense, and if these cuts are automatically

made, I think that the results for our national security will

be catastrophic.

That is what the former Secretary of Defense, a most respected Secretary, said not long ago. So I think that is fundamentally correct, that we are proceeding on a path that disproportionately impacts the Defense Department and would be damaging in a way that is not necessary and should not happen.

A lot of these other programs have been surging out of control with problems after problems--whether it is Solyndra loans that were made, apparently knowing the company is going under--those kinds of things we need to focus on. To suggest they cannot have any cuts, and all the cuts have to fall on defense, or a disproportionate number of them, is a mistake.

I am a firm believer that the Defense Department, and every department of our government, has to tighten its belt, and we cannot continue with business as usual, and we should be having reductions in spending in every single bill that is coming before us. But I am afraid the only bill that will actually show an actual reduction in spending is the Defense bill, when we have men and women in harm's way right now on guard to defend our country.

I feel we need to get our act together. I am hopeful this committee of 12 can reach an accord that would not hammer the Defense Department additionally from the huge cuts they are already being asked to make over the next 10 years. Maybe they can help us begin to get on a path to fiscal responsibility. But I am doubtful they are going to make a big change. Hopefully, they will make some agreement, but it does not look hopeful we will have the kind of financial alteration of spending in America that is necessary to get our country on the right path.

After all, Admiral Mullen, the Chairman of the Joint Chiefs of Staff, said last year that the greatest threat to our national security is our debt. We are already seeing how it impacts us when you see these cuts being discussed and being threatened.

I want to thank Senator Ayotte--a former prosecutor, attorney general of New Hampshire--for jumping in right away into the very critical issue of detainees and how they should be treated in the United States. In the short time she has been here, she is making a big difference on that.

I was involved in it on the Judiciary Committee. I have been involved in it on the Armed Services Committee. I am basically exhausted with it. I remain flabbergasted. I think you are right, Senator Ayotte. This is progress I believe you have made in these negotiations, but I think we have gone too far in many of these ideas already. It does not make common sense.

Let me say a couple of things about it. When a person is at war against the United States and they are captured in combat activities against the United States, they are able to be detained. They do not have to be tried. They do not have to be given Miranda rights. They have to comply with the Geneva Conventions about food and the right to communicate, and, within limits, they can be interrogated. All of those things are part of the Geneva Conventions. And they are to be detained until the war is over. That is so fundamentally logical. Why in the world would a person who is fighting an enemy and could have killed the enemy at one moment and captures them the next moment then be required, while the war is still ongoing, to release them so they can shoot you again and attack you again?

This is perfectly logical. It is part of the history of war, and it has long been established that when you capture enemy combatants, you can detain them until the conflict is over. But we have had this obsessive desire and attack by some that the people who have been captured need to be released, and they insisted that they be released. So they started with the least dangerous members, and they have released, I guess now, a majority of the people who have been detained. And among the least dangerous members who have been released, as Senator Ayotte says, we now have 27 percent who have been identified as in the war, attacking us now, and one of them is one of the top leaders in al-Qaida. This was never necessary.

Guantanamo is a perfectly logical place to hold these individuals, and how it became such a political issue--and President Obama campaigned on it, and Attorney General Eric Holder was out there complaining about it. Then he gets in as the Attorney General of the United States, and they commence to make some serious errors, in my opinion.

One of the biggest errors was to create a presumption that somebody who has been apprehended attacking the United States should be treated in civilian courts. I know Senator Ayotte

just said this earlier, but people need to know. If you are going to try someone in civilian court, you have to give them the Miranda immediately because when they come before the judge, if they made an admission without Miranda, it cannot be used against them. And you have to tell them immediately that they are entitled to a lawyer. When you capture people in a war, you don't give them lawyers. That has never been a part of the rules of war. And they are guaranteed presentment, the right to speedy trial in Federal court within 70 days. They are entitled to a preliminary hearing. So all of the other bad guys and terrorists now have an opportunity to know that you have captured their co-conspirator, perhaps, and are aware of the circumstances and may scatter in a way that you would not want to occur.

So these are realistic things. So if there is a presumption--first of all, I would say all of the cases should be tried in military commissions, if they are tried, and not in civilian court. But certainly the presumption should be that they would be in military commissions because if the presumption, as Attorney General Holder has declared, is that it is civilian, then you have to do the warning.

I remember in one of my hearings, Senator Lindsey Graham, a JAG officer in the Air Force--still trains as a reservist--grilled I believe it was Attorney General Holder and asked him: Well, what would happen if bin Laden were captured? Would you give him Miranda rights? And he could not answer the question. He would not answer the question because under his presumption, if Osama bin Laden were apprehended, he should be given Miranda rights.

So that is the nub of the problem we have been wrestling with, and we have had a lot of political rhetoric, in my opinion, attacked President Bush time and time again. They did not conduct everything perfectly, but many of the attacks on President Bush, his Department of Justice, and his military were unfair.

Do you know that not a single person in Guantanamo was ever waterboarded, that the U.S. military never participated in that? These were intel interrogations done under limited circumstances to a very few people. Whether they should have been done or not, we can all argue and disagree, but the idea that the U.S. military, the Defense Department, was systematically torturing and abusing prisoners is absolutely untrue. No military under such difficult circumstances has performed so well.

Another subject. One of my amendments deals with a subject I have had an opportunity to be engaged in for some years. Around 2002, 2003, or 2004, I led a congressional delegation to Europe dealing with the extent of our forces in Europe, how many we have deployed there, and the opportunity we had and maybe the need we have to bring home some of those forces.

We were going through a BRAC process in the United States, closing bases and consolidating bases. That process did not apply officially to Europe and bases around the world. And a number of us were engaged in that. I recall that Senator Saxby Chambliss and Mike Enzi traveled with us to Europe, and we examined--went to Germany and Italy and Spain, and we saw the bases that were important to the United States, bases that we really needed and we had good support from our allies on and that would be enduring bases. And there was a plan in place to reduce the deployment in areas where it was less important.

So as a matter of background, I would share these thoughts. Since 2004, the Defense Department has had a plan to transfer two of its four combat brigades in Europe back to the United States as part of a larger post-Cold War realignment. However, in April of this year---April of this year--the Department of Defense announced it would maintain three combat brigades and the fourth would not leave Europe until 2015.

Earlier this year, Admiral Stavridis told the Senate Armed Services Committee that roughly 80,000 troops remain in Europe. Moving a brigade combat team back to the United States would have cut U.S. forces by 5,000 personnel.

A 2010 plan developed by a congressionally appointed committee found that cutting one-third of the U.S. military presence in Europe and the Pacific would save billions of dollars over 10 years. I do believe significant cost savings can be realized. In addition to these savings, stationing these troops in the United States would have a stimulative effect on State and local economies, with these soldiers and families living in their local economies and being able to stay with their families more easily and reducing the number of extensive movements of personnel and families to deploy in different places around the world. So I believe we need stay on track with this plan.

A February 2011 GAO report found that DOD posture planing guidance does not require the EUCOM--the European Command--to include comprehensive cost data in its theater posture plan. As a result, DOD does not have critical information that can be used by decision-makers as they deliberate posture requirements.

The GAO analysis showed that of the approximately $17 billion obligated to the services to support installations in Europe between 2006 and 2009, approximately $13 billion--78 percent--was for operation and maintenance costs. Now, those countries want our people there. It brings American money to their economy--just like we would like to have a brigade combat in Alabama, New Hampshire, or some other places. It is good for the economy.

NATO and European allies, however, are not meeting their defense spending obligations. Many of our allies do not meet the EU standard. The United States should not be continuing to subsidize NATO and European allies' defense spending. They need to participate some more.

I believe there are significant savings that could be found by bringing both of these brigade combat teams to the United States, as has been planned.

I would ask, is Europe more threatened today than it was 2, 3, 4, 6 years ago? I do not think so. They do not think so. Europeans committed to 2 percent of their GDP to be committed to defense, but many of those nations are down to 1 percent. They are not even fulfilling their 2 percent goal. The United States is at 4 percent of GDP on defense, almost.

I think the Europeans need to be prepared to understand that they cannot live off the United States. There is a great book by Kagan called ``Paradise and Power.'' It is very insightful, a very insightful book. It says, in a sense: Europeans are comfortable. Why? Because they are under the umbrella of American power. They have been comfortable with that. They do not feel threatened. They are not paying their fair share of the defense burden. And they do not like it when we want to bring home troops. Give me a break. It is time to do something about that.

I believe all of our allies around the world, whether in the Pacific or in Europe or in other areas of the globe, ought to work with us in partnership so that we can be most effective in providing some stability around the world. But the idea that the United States can unilaterally fund a security force for the whole world is unrealistic. It can't be sustained.

I just cannot possibly see how we need this many troops in Europe at this point in history. I believe it would be good for our economy to have those troops back home in the United States. You can have the bases there that we could surge and meet any challenge in short order. I believe that is the right approach.

I see my friend, Senator Enzi. We traveled together on that trip to Europe a number of years ago to examine the bases that we felt should be permanent and the ones that should be closed.

I yield the floor.

Mr. President, I would like to thank the chairman of the Armed Services Committee for such a thorough analysis of the detainee provisions represented in section 1031 through 1034 of the Defense authorization bill. This is a very important part of the Defense authorization bill, and I certainly appreciate the thoughtful analysis that the chairman did.

I would say that his thoughtful and detailed analysis addressed all the red herrings that have been raised about these particular provisions. Because if you read carefully the language in the provisions that were addressed by the Armed Services Committee, they do provide the flexibility that the administration says they have sought in making the best decisions on how to treat detainees, particularly those who become members of al-Qaida and come to our country to commit an attack against our country. We have to make sure we have the right provisions in place to protect Americans and the flexibility so the executive branch officials are able to decide what is the best track to handle a particular case or member of al-Qaida who comes to our country to, unfortunately, attack us.

I also wish to remind this body that these provisions of the Defense Authorization Act were passed out of the Senate Armed Services Committee on an overwhelming bipartisan basis. In fact, the entire Defense Authorization Act was voted out twice unanimously by the Armed Services Committee, including on Monday of this week, when we again voted out the entire provisions of this act unanimously.

So the particular provisions the chairman just discussed were the result of extensive discussions not only within the committee but also based upon testimony we heard over months from military officials regarding concerns they had about the lack of clarity in our detention policy, and that is where we came to the provisions in 1031 through 1034.

I wish to also remind this body there were many of us who would have gone much further in terms of how we would handle members of al-Qaida who come to our country to commit attacks against our citizens or those who would commit attacks against our citizens or soldiers overseas and our coalition partners. I brought forth an amendment on the CJS appropriations minibus that would have prohibited funding altogether for civilian trials of this same category for terrorists in the United States. So I would have liked to have gone much further. But I respect the amendment the committee voted out, which, in this instance, addressed the administration's concerns of allowing the administration a national security waiver to decide how to handle these cases whether they wanted to take a military track or a civilian track based on the national security interests of our country, which is, of course, what has to be foremost in these cases.

I wish to again remind everyone of the problem we have, which is that the priority, when we are dealing with a member of al-Qaida who is seeking to attack our country, has to be intelligence gathering. We have to make sure we give our executive branch agencies the tools they need to be able to gather information to know about future attacks and to protect our country.

What happens now in our civilian system is, if someone is arrested here, if they are in the civilian system, they are given rights that are part of our constitutional system, which is Miranda rights, for example. If they are in custody and there is interrogation, they have to be told they have the right to remain silent, that they have a right to a lawyer, and that they have a right to speedy presentment. These types of rights are incredibly important to our civilian system.

When we have a terrorist who is a member of al-Qaida, who is a foreigner, and who comes to this country to attack our country, the first thing they hear should not be ``you have the right to remain silent.'' We have to allow our executive branch officials the ability to make intelligence gathering the first priority. This amendment allows that and gives the executive branch the ability to decide in which system they want to treat them and to be able to prioritize intelligence gathering so we can protect Americans and make sure if someone who is a member of al-Qaida comes to our country to attack us, we can gather information without immediately having to tell them ``you have the right to remain silent.''

That is what is so important with this amendment. It was a bipartisan compromise. As I said, there are Members of the Senate, including myself, who would have liked to have gone much further. But we addressed so many of the concerns of the administration they came up with to make sure they had, with these provisions, the ability to not have to interrupt an interrogation, to conduct the interrogation as they saw fit, to make sure they could conduct ongoing surveillance, and to decide whether a military or civilian track was best based on our national security interests.

I will say just one thing with respect to the transfer provisions and the concerns that have been raised about the provisions set forth for transferring detainees from Guantanamo. This is an area that cried out for some clarification, and it is important that the standard the committee came up with is in statute. Actually, as the chairman mentioned, the reason the committee addressed this is because our defense officials raised some concerns about what the waiver provisions should be from Guantanamo. This has been an area of interest of mine because of where we are right now with the Guantanamo detainees.

Unfortunately, the reality is that 27 percent of those who have been released from Guantanamo have gotten

back into the fight and are back trying to kill us, our troops, and our coalition partners. This is an area where it was very important to have clear standards: where transfer would only be appropriate in the instances where we could ensure there wouldn't be recidivism so that we could protect our troops and our partners from having to see the very same individuals we had already had in custody at Guantanamo. So the provisions set forth here are very important to have that statutory standard for when transfers can be made and how they should be handled.

In fact, I would add, when we think about some of the detainees who have gotten back into theater whom we had in our custody at Guantanamo, they are conducting suicide bombings, recruiting radicals, and training them to kill Americans and our allies. Some of the former Gitmo detainees--and I think unfortunately it is a little bit of a badge of honor now to get back into theater and to be engaged in fighting again. Said al-Shihri and Abdul Zakir represent two examples of former Guantanamo detainees who returned to the fight and assumed leadership positions in terrorist organizations that are dedicated to killing Americans and our allies. Said al-Shihri has worked his way up to be No. 2 in al-Qaida in the Arabian Peninsula. We had him in our custody and, unfortunately, he was released. Abdul Zakir now serves as a top Taliban military commander and a senior leader in the Taliban Quetta Shura again fighting us and our allies.

Again, I am concerned that in the world of terrorists it has become a badge of honor to be released from Guantanamo and then to get back into the fight against us. So I just wanted to put in perspective what we heard from our senior defense officials over a period of months in the Armed Services Committee as to why it is important to have a standard that allows the Department of Defense, under limited circumstances and based on protecting our country, to transfer the detainees, but only when we have addressed the issue of recidivism and they are assured that these individuals aren't going to get back in theater and try to kill American soldiers or our allies. That is why this provision is in here, and I am very pleased it is in here to make sure we address this important issue to keep Americans protected and our allies protected.

I will repeat again that this was a bipartisan compromise. This morning the chairman very thoroughly went through each of the issues raised in the Statement of Administration Policy. Also, in my view, he thoroughly knocked down many of the red herrings that were raised about this provision on the Senate floor yesterday by Senators who are seeking to strike this provision from the Defense Authorization Act.

It is important that this body pass this Defense authorization. It is important for not only these provisions, but also so many of the provisions of this Defense authorization that give our troops the tools they need, as we tell them we are here to support them, to make sure we move forward with the Defense authorization, including these important provisions that address how we handle detainees.

Again, I wish to thank the chairman of the Armed Services Committee for his leadership on this issue. I know he has worked very hard in meeting with the administration, meeting with those of us on the other side of the aisle who actually wanted to go much further in coming up with a very strong, important piece of legislation that will protect Americans and move us forward and provide some clarity in an area where we need clarity to make sure our executive branch officials have the tools they need to gather intelligence to protect Americans from the terrorist attacks because, unfortunately, those who are members of al- Qaida still seek to kill us for what we believe, not for anything we have done, and we can't forget that.

So I thank the chairman.

Amendments Nos. 1179, 1230, 1137, 1138, 1247, 1246, 1229, 1230 as

Modified, 1249, 1071, 1220, 1132, 1248, 1250, and 1118 En Bloc

Mr. President, I ask unanimous consent on behalf of other Republican Senators to temporarily set aside the pending amendment and call up the following amendments en bloc: amendment No. 1179 on behalf of Senator Graham; amendment No. 1230 on behalf of Senator McCain; amendment No. 1137 on behalf of Senator Heller related to the U.S. Embassy in Israel; also for Senator Heller, amendment No. 1138 related to the repatriation of U.S. military remains from Libya; for Senator McCain, amendment No. 1247 related to further restrictions on the use of defense funds on Guam; for Senator McCain, amendment No. 1246 related to a commission for U.S. military force structure in the Pacific; for Senator McCain, amendment No. 1229 related to a cybersecurity agreement between the Department of Defense and the Department of Homeland Security; for Senator McCain, amendment No. 1230, as modified, related to the annual adjustment in enrollment fees for TRICARE Prime; for Senator McCain, amendment No. 1249 related to cost-plus contracting--and this is also an amendment that I am cosponsoring; for Senator McCain, amendment No. 1071 related to the oversight of the evolved Expendable Launch Vehicle; for Senator McCain, amendment No. 1220 related to a GAO report of Alaskan Native Corporation contracting; for Senator McCain, amendment No. 1132 related to a Statement of Budgetary Resource Auditability; for Senator McCain, amendment No. 1248 related to authorizing ship repairs in the Northern Marianas; for Senator McCain, amendment No. 1250 related to a report on the probation of the F-35B program; for Senator McCain, amendment No. 1118 to modify the availability of surcharges collected by commissary stores.

I have to make a clarification on an amendment I previously offered on behalf of Senator McCain: amendment No. 1230, as modified, Senator McCain's amendment on TRICARE.

I ask unanimous consent from the chairman of the Armed Services Committee to allow the Senator from Alabama to speak.

I thank the chairman. He is very kind, and it has been wonderful to serve under his leadership on the Armed Services Committee, of which I would say, one of the great experiences in the Senate is that the Armed Services Committee--in a time when people see so much partisan--works on a very strong, bipartisan basis to ensure our country is protected.

With that, I would yield to my colleague who also serves on the Armed Services Committee, whom I have great respect for, Senator Sessions from Alabama.

Mr. SESSIONS addressed the Chair.

Mr. President, I would like to give my thanks to the Senator from Alabama for his comments about the concerns he has about our detainee policy and about how important it is that we have the right policies in place to protect Americans so that we can prioritize gathering intelligence.

I also wanted to share in his concerns about what is happening with the supercommittee in terms of the impact on our national security. There is no question that there are areas where we can do much better and be more effective with taxpayer dollars on defense

spending. But we cannot subjugate our national security for our failure around here to do our job and to have courage to take on the entire budget and bring ourselves on a path of fiscal responsibility.

So I know the Senator from Alabama has been a great leader in this area, and I appreciate his comments in that regard.

Amendment No. 1249

Mr. President, I also wanted to speak briefly on an amendment that has already been made pending that Senator McCain and I are cosponsoring together.

Over the last year, as a new Member of the Senate and the Senate Armed Services Committee, one of the concerns I have had is the way we do contracting at the Department of Defense. My overall impression has been that a third year law student could negotiate much better terms for the United States than we have been negotiating for the country. In some of the negotiations with our defense contracts we end up on the hook when contractors don't perform or it takes longer than they indicate, and we seem to always bear the financial burden of that.

When we look at the fiscal state of the country and where we are, we need to reform that process. That is what drew my interest to this issue. Senator McCain has long worked on this issue of reforming our acquisition process, and I have great respect for the work he has done there. So we have offered on this National Defense Authorization Act amendment No. 1249, which would prevent millions of dollars in wasteful contract cost overruns from the Department of Defense on major defense acquisition programs and help to ensure that our warfighters have the weapons and systems they need to protect our Nation but doing so within budget and on time frames that contractors commit to for our needs to make sure we have what we need to protect our country.

According to the Government Accountability Office, in a March 2011 report entitled ``Defense Acquisitions: Assessments of Selected Weapons Programs,'' from fiscal year 2010 collectively, we ran more than $400 billion over budget and were an average of almost 2 years behind schedule for major defense acquisitions programs.

Today, half of the Department of Defense major defense acquisition programs do not meet cost performance goals. Eighty percent of our major defense acquisition programs have an increase in unit costs from initial estimates that were given. While there can be many factors that explain the cost overruns, the cost-type contracts have been a significant contributing factor in why we have these overruns both for production and development of our major defense acquisition programs. We have to address these cost overruns, particularly at a time when we are asking our Department of Defense to reduce spending. We need to get the maximum bang for our buck and hold contractors accountable when they do not perform what we have contracted them for. We need to make sure the terms of our contracts are good for the United States and are fiscally responsible, and that is what this amendment would do.

It would prohibit the use of cost-type contracts for the production of major defense acquisition contracts and limit the use of cost-type contracts for major defense acquisition development contracts. This represents the core investment in our Nation's military, and as these costs increase, and as the Department of Defense faces the looming prospect of major budget cuts over the next decade, we have to address this now for our troops and for our national security. We have to get this right.

I am hoping for and I ask my colleagues to support this amendment we are bringing forward. Again, I would say on behalf of Senator McCain, who has done so much work in this area, reforming our acquisition process and getting this right is so important to what we are asking our military to do right now, which is to do more with less.

I thank the Chair, and I yield the floor.

Mr. President, I thank the Senator from Georgia for his leadership on the Armed Services Committee and also for the important work he has been doing as the vice chair of the Intelligence Committee to make sure our country is protected. He is particularly knowledgeable on these issues of how we treat detainees, and we did have a detailed colloquy on the floor. His insight has been so important in making sure we have the right policies in place to protect America.

I yield the floor.

Mr. President, I ask unanimous consent to temporarily set aside the pending amendment and call up the following amendments en bloc: Senator McCain's amendment No. 1281 regarding the transfer of arms to Georgia; Senator Blunt's two amendments, Nos. 1133 and 1134; Senator Murkowski's two amendments, Nos. 1286 and 1287; and Senator Rubio's two amendments, Nos. 1290 and 1291.

Mr. President, the amendments have been cleared on our side.

Mr. President, I rise today, with my colleagues, Senator Collins, Senator Akaka, and Senator Lugar, to support an amendment to improve the efficiency and effectiveness of our government by fostering greater integration among the personnel who work on critical national security and homeland security missions.

The national security and homeland security challenges that our Nation faces in the 21st century are far more complex than those of the last century. Threats such as terrorism, proliferation of nuclear and biological weapons,

insurgencies, and failed states are beyond the capability of any single agency of our government--such as the Department of Defense, DOD; the Department of State; or the intelligence community--to counter on its own.

In addition, threats such as terrorism and organized crime know no borders and instead cross the so-called foreign/domestic divide--the bureaucratic, cultural, and legal division between agencies that focus on threats from beyond our borders and those that focus on threats from within.

Finally, a new group of government agencies is now involved in national and homeland security. These agencies bring to bear critical capabilities--such as interdicting terrorist finance, enforcing sanctions, protecting our critical infrastructure, and helping foreign countries threatened by terrorism to build their economies and legal systems--but many of them have relatively little experience of involvement with the traditional national security agencies. Some of these agencies have existed for decades or centuries--such as the Departments of Treasury; Justice; and Health and Human Services, HHS-- while others are new since 9/11, such as the Department of Homeland Security, DHS.

As a result, our government needs to be able to apply all instruments of national power--including military, diplomatic, law enforcement, foreign aid, homeland security, and public health--in a whole-of- government approach to counter these threats. We only need to look at our government's failure to use the full range of civilian and military capabilities to stymie the Iraqi insurgency immediately after the fall of Saddam Hussein's regime in 2003, the government's failure to prepare and respond to Hurricane Katrina in 2005, and the government's failure to share information and coordinate action prior to the attack at Fort Hood, TX, in 2009, for examples of failure of interagency coordination and their costs in terms of lives, money, and the national interest.

The challenge of integrating the agencies of the executive branch into a whole-of-government approach has been recognized by congressionally chartered commissions for more than a decade. Prior to 9/11, the commission led by former Senators Gary Hart and Warren Rudman, entitled the U.S. Commission on National Security in the 21st Century, issued reports recommending fundamental reorganization to integrate government capabilities, including for homeland security.

In 2004, the 9/11 Commission, led by former Governor Tom Kean and former Representative Lee Hamilton, found that the U.S. Government needed reform in order to foster a stronger, faster, and more efficient governmentwide effort against terrorism.

And in 2008, the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, led by former Senators Bob Graham and Jim Talent, called for improving interagency coordination in our Nation's defenses against bioterrorism and other weapons of mass destruction.

Congress has long recognized that a key way to better integrate our government's capabilities is to provide strong incentives for personnel to do rotational assignments across bureaucratic stovepipes. The personnel who serve in our government are our Nation's best and brightest, and they have and will respond to incentives that we institute in order to improve coordination across our government.

In 1986, Congress enacted the Goldwater-Nichols Department of Defense Reorganization Act. That legislation sought to break down stovepipes and foster jointness across the military services by requiring that military officers have served in a position outside of their service as a requirement for promotion to general or admiral.

Twenty-five years later, this requirement has produced a sea change in military officers' mindsets and created a dominant military culture of jointness.

In 2004, Congress enacted the Intelligence Reform and Terrorism Prevention Act at the 9/11 Commission's recommendation and required a similar rotational requirement for intelligence personnel. The Director of National Intelligence has since instituted rotations across the intelligence community as an eligibility requirement for promotion to senior intelligence positions, and this requirement is helping to integrate the 16 agencies and elements of the intelligence community.

Finally, in 2005, Congress enacted the Post-Katrina Emergency Management Reform Act to improve our Nation's preparedness for and responses to domestic catastrophes and instituted a rotational program within the Department of Homeland Security in order to integrate that Department.

This proven mechanism of rotations must be applied to integrate the government as a whole on national security and homeland security issues. Indeed, the Hart/Rudman Commission called for rotations to other agencies and interagency professional education to be required in order for personnel to hold certain positions or be promoted to certain levels. And the Graham/Talent Commission called for the government to recruit the next generation of national security experts by establishing a program of joint duty, education, and training in order to create a culture of interagency collaboration, flexibility, and innovation.

The executive branch has also recognized the need to foster greater interagency rotations and experience in order to improve integration across its agencies. In 2007, President George W. Bush issued Executive Order 13434 concerning national security professional development and to include interagency assignments. However, that Executive order was not implemented aggressively toward the end of the Bush administration and has languished as the Obama administration pursued other priorities.

Clearly, it is time for Congress to act and to institute the personnel incentives and reforms necessary to further integrate our government and enable it to counter the national security and homeland security threats of the 21st century.

In June of this year, I joined with Senator Susan M. Collins and Senator Daniel K. Akaka to introduce the bipartisan Interagency Personnel Rotation Act of 2011, S. 1268. Companion legislation was introduced in the House of Representatives on a bipartisan basis by Representative Geoff Davis and Representative John F. Tierney. The legislation was marked up by the Committee on Homeland Security and Governmental Affairs on October 19, 2011. I am pleased that Senator Richard Lugar, ranking member of the Committee on Foreign Relations, has joined as a cosponsor of that bill. Senator Collins, Senator Akaka, Senator Lugar, and I are pleased to offer the Interagency Personnel Rotation Act, with minor modifications from the marked-up version, as an amendment to the National Defense Authorization Act for Fiscal Year 2012.

The purpose of this amendment is to enable executive branch personnel to view national security and homeland security issues from a whole-of- government perspective and be able to capitalize upon communities of interest composed of personnel from multiple agencies who work on the same national security or homeland security issue.

This amendment requires that the executive branch identify ``Interagency Communities of Interest''--which are subject areas spanning multiple agencies and within which the executive branch needs to operate on a more integrated basis. Interagency communities of interest could include counterinsurgency, counterterrorism, counter proliferation, or regional areas such as the Middle East.

This amendment then requires that agencies identify positions that are within each interagency community of interest. Government personnel would then rotate to positions within other agencies but within the particular interagency community of interest related to their expertise.

Government personnel could also rotate to positions at offices that have specific interagency missions such as the national security staff. Completing an interagency rotation would be a prerequisite for selection to certain Senior Executive Service positions within that interagency community of interest. As a result, personnel would have the incentives to serve in a rotational position and to develop the whole-of-government perspective and the network of contacts necessary for integrating across agencies and accomplishing national security and homeland security missions more efficiently and effectively.

Let me offer some examples of how this might work.

An employee of the U.S. Agency for International Development, USAID, who specializes in development strategy could rotate to a DOD counterinsurgency office to advise DOD in planning on how development issues should be taken into account in military operations, while a DOD counterinsurgency specialist could rotate to USAID to advise on how development priorities should be assessed in a counterinsurgency.

A Treasury employee who does terrorist finance work could benefit from a rotation to Department of Justice to understand operations to take down terrorist cells and how terrorist finance work can help identify and prosecute their members, while a Justice employee would have the chance to learn from the Treasury's financial expertise in understanding how sources of funding can affect cells' formation and plotting.

An HHS employee who specializes in public health could rotate to a DOD counterinsurgency office to advise on improving public health in order to win over the hearts and minds of the population to counter insurgency, while a DHS employee could rotate to HHS in order to learn about HHS's work to prepare the U.S. public health system for a biological terrorist attack.

The cosponsors of this amendment and I recognize the complexity involved in the creation of interagency communities of interest, the institution of rotations across a wide variety of government agencies, and having a rotation as a prerequisite for selection to certain Senior Executive Service positions. As a result, our legislation gives the executive branch substantial flexibility--including to identify interagency communities of interest; to identify which positions in each agency are within a particular interagency community of interest; to identify which positions in an interagency community of interest should be open for rotation and how long the rotations will be; and, finally, which Senior Executive Service positions have interagency rotational service as a prerequisite.

To be clear, this legislation does not mandate that any agency be included in an interagency community of interest or the interagency personnel rotations; instead, this legislation permits the executive branch to include any agency or part of an agency as the executive branch determines that our Nation's national and homeland security missions require.

Finally, I wish to stress that this amendment is designed to be implemented with no cost to the executive branch.

First, this amendment is designed to be implemented without requiring any additional personnel for the executive branch. The amendment envisions that rotations will be conducted so that there is a reasonable equivalence between the number of personnel rotating out of an agency and the number rotating in. That way, no agency will be short staffed as a result of having sent its best and brightest to do rotations; each agency will be receiving the best and brightest from other agencies.

Second, this amendment relies on the office that is currently implementing the executive branch's national security professional development program to implement this framework instituted by this amendment. This office is currently housed at DOD, and the legislation would move the office and its three employees to the Office of Management and Budget and the Office of Personnel Management, which have oversight responsibility for this framework. Thus, no new staff would be required to administer the framework set forth in the amendment.

Third, this amendment has a 5-year implementation period which requires the executive branch to create two interagency communities of interest--for emergency management, and stabilization and reconstruction--to restrict the number of personnel doing rotations to 20 to 25 per year per each of these two interagency communities of interest, and to restrict the rotations to within a metropolitan area in order to avoid any relocation costs.

Fourth, this amendment requires that personnel doing a rotation receive the same training by the receiving agency that the receiving agency would provide to its own new employees, rather than more elaborate training that would incur costs.

And fifth, this amendment requires that any reports produced pursuant to the amendment be submitted on line rather than published in hard copy.

Let me close by answering a common objection to government reorganization. To quote the 9/11 Commission:

An argument against change is that the nation is at war,

and cannot afford to reorganize in midstream. But some of the

main innovations of the 1940s and 1950s, including the

creation of the Joint Chiefs of Staff and even the

construction of the Pentagon itself, were undertaken in the

midst of war. Surely the country cannot wait until the

struggle against Islamic terrorism is over.

I urge my colleagues to take bold action to improve the efficiency and effectiveness of our government in countering 21st century national security and homeland security threats by promptly adopting this amendment to the National Defense Authorization Act for Fiscal Year 2012.

Mr. President, I ask unanimous consent to speak as if in morning business.

Mr. President, I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I was sorry to hear the supercommittee is in trouble, that they might not be able to agree. Then this morning's Washington Post front page headline was ``Debt Panel Failure Won't Cause Catastrophe.''

Every day we do not find a solution, every day we spend is a catastrophe. We have maxed out our credit cards. Here is one way that came to my attention. I was traveling in Wyoming and I checked into the hotel for the night. The person checking me in, very embarrassed, said: I am sorry, but it will not take your credit card. It was a Federal credit card.

I said: Goodness, we are in more trouble than I thought. I gave them my personal credit card and that went right through so I am not sure where we are. But I know we have maxed out our credit cards and not just that but also the symbolic credit cards that we have. We have as much debt as we probably can sustain and as debt comes due across the world for other countries, it is going to be tougher and tougher to be able to sell more debt.

We are kind of in the same situation as Greece and Italy, except for two things. No. 1 is we are a big, flexible country that has pulled itself out of terrible situations time and time again, and we will do it this time too. We also own our own money supply. That helps.

When constituents ask what can they expect, I always start the conversation by saying you should expect to get no more than what the 2008 level was. We increased things considerably after that with the stimulus bill and that increased some bases. We have to get back down to 2008, just as a beginning.

I have to say the President has had a chance to change direction. I have to congratulate the President for naming a deficit commission. I even like the people he named to it, with Senator Simpson from Wyoming and Erskine Bowles heading up that committee. I think they did some tremendous work. I think we should pay more attention to what they had to say.

I had a little disappointment when the President did his State of the Union speech following their report. He had an opportunity to repaint the same bleak picture that committee painted and America would have understood better. Although from traveling across our country, and particularly in Wyoming, I know the people there understand it better than Congress does. But he could have changed it by repainting that picture and then he could have followed it up with a solution which would have been his budget. Instead, his budget was another stimulus plan. It has been voted on by Congress. It was not voted for by Congress, it was voted on by Congress, and it was voted 97 to nothing-- it was defeated. I think the deficit commission report would have done much better.

Congress has also had the chance to change direction--and in some cases we have. We have kind of eliminated earmarks. There are still some of them that are slipped in, but we kind of eliminated them. We have a couple new problems. Now we add demonstration projects. We have always had demonstration projects, but now we do it as a substitute for earmarks and that is where we allow maybe five States to have an opportunity to do a particular program to see if it works. So we fund it in a minimal amount--that still is millions. The difficulty is that at the end of the period of time for that demonstration project, they all work. They are all spectacular. They all would save America if we just put it in every single State and funded it from the Federal Government.

It can't happen. We are out of money. There are lots of good ideas out there, lots of good ideas that would help. When those ideas are proved--the idea with the demonstration is that it would demonstrate well enough how good it is that somewhere at the local level that project would be picked up and done or forgotten. But, no, we do make them a national program and we do fund them forever in chunks of time.

Another thing we are doing is that we propose a project and, because we like the word ``pay-for,'' because we should pay for whatever we are doing, we put up a project, we put a 2-year limit on the project, and then we pick a pay-for by showing some program that, if it were eliminated for 10 years, might bring in that amount of revenue. We cannot pay for a 2-year program with 10 years' worth of revenue because somebody is going to spend the rest of that anyway and it may never be collected. A Congress can change its mind all the time. We have to quit using gimmicks and we have to quit adding new programs. What part of maxed out credit cards don't we understand? We have to quit buying votes with dollars we do not have.

We do have to address mandatory spending. Social Security and Medicare have been a problem for a long time. I remember when I first came to Congress, President Clinton was the President and he called for a special conference on Social Security. We had 1 day where we got to be initiated into what all the problems were--fantastic speakers. We had a second day where Members of the House and Congress met in smaller committees to work on pieces of the Social Security problem. We came up with a plan and President Clinton looked at the plan and met with us as a group and said: If all of you are willing to put your fingerprint on this, we will do it. We can only do it if everybody puts their fingerprint on it so both parties are responsible for it, and everybody in the room agreed to do that.

Unfortunately, we were distracted a little bit by something called Monica Lewinsky, and that bill never came up anywhere.

The situation we are in right now is passing bills to fail. Each side has a tendency to put up a bill that has something good in it, packaged with something they like but the other side doesn't like. It is going to get defeated on the basis of what each side doesn't like and the good part is left out. That is not going to get anything done for us.

We have tried the stimulus bill. We got negligible effects on jobs. It did escalate the basis for budgets and it was the use of one-time money. That has created some problems for it. We hear that 30,000 teachers and firefighters are going to be laid off. That comes from safety money and education money that went to the States. It was one- time money. They cannot use one-time money for a continuing contract. If a State did, yes, they are having to lay off people because the stimulus is not being repeated each and every year.

Are there solutions? Yes, there are solutions. I am optimistic about the solutions. I do recognize everything has to be on the table and we should all reread the deficit commission report. We have to ask constituents to suggest their own programs to reduce.

In the spring, we will be inundated by a whole lot of people who will be ready to have us support the program that makes a difference in their life and the life of the community. I always ask them how we are going to pay for it? They always suggest somebody else's program to cancel. There are never any suggestions of how to consolidate within their own program and do it. They have to do it and each of us in Congress needs to evaluate our own programs. Not all of them can be sacred cows. I wish to congratulate Senator Rubio and Senator Coons for a jobs creation bill they have put together. They have taken the diverse bills from both sides of the aisle and several others and looked to see if there was any common thread. All they did was pick out the common thread from each of those and put them into a bill. If both sides and others in Congress like it, why would that not pass and pass quickly?

I congratulate our Congresswoman Lummis, from Wyoming. She is on the Appropriations Committee. I think that is the first time we have ever had anybody on the Appropriations Committee. She gets into the details of the budget. In fact, she has gotten into details of the budget down to very small

amounts, so much that she has been told she is not going to be invited on any trips with any of the rest of them. That is probably what we need right now, and I congratulate her on her attention to detail.

Another thing we have to do is make sure the bills go to committee. I have been a committee chairman. I have been a ranking member. I know when a bill goes to committee, that is where we can get into the details of the bill, and we can do nuances. When a bill comes to the floor of the Senate, and it came from the President to the leader and then to us, the amendments we put in are not very workable as far as reaching agreement from both sides. They are kind of an up-or-down vote. They are very political, and that kind of stymies what we are trying to do.

We have to quit doing comprehensive bills. We can do them in stages. We can do parts of them. They can be very major parts, but they can be done in parts.

I remember reading a book about the compromise of 1850. Henry Clay put himself in the hospital trying to pass this huge compromise. When he did, some of his friends took the bill, broke it into parts, four parts, and got all the parts passed. Now, there were only four people in all of the Senate at that time who voted for all the parts, but all the parts passed. There should be a lesson in there for us. I do follow an 80-percent rule; I found we can agree on 80 percent of the issues. If we stick to that 80 percent, we can pick any one issue and we can solve 80 percent of that problem. We can solve 100 percent if we can get everybody to think of an alternative way to do that, one sticky part that we have polarized for years.

Another thing we need to do is eliminate duplication. Senator Coburn and I took a look at the primary department that comes under the jurisdiction of the Health, Education, Labor, and Pensions Committee. We found $9 billion in duplication. Because it is duplication, we cannot eliminate $9 billion because there are some who would stay and do the same thing the other group was doing. It stimulated Dr. Coburn enough that he looked at all the programs. In all of the programs he found $900 billion worth of duplication.

Duplication is not like fraud, waste, and abuse. Fraud, waste, and abuse, we don't know how much is out there. We catch a piece at a time, and we speculate on how much there is. But duplication is specific because it is already in the budget.

We can look at what they are paid right now, and if we eliminate that, it is a specific amount. When he talks about $900 billion worth of duplication, it is $900 billion worth of duplication. We ought to be able to get rid of at least $450 billion of that. Half of it could be duplication. It is twice as much of what we effectively need.

Why did we find $9 billion in one agency and $900 billion by looking at all of them? When we go outside the jurisdiction, we find--this one always kind of interests me--financial literacy programs in virtually every department and agency in this Federal Government. If we really have financial literacy, would we be in the position we are in now? I don't think so. So that is a whole lot of duplication. It is duplicating each and every agency. If we have only one jurisdiction over one agency, that is the only place we can eliminate it.

When I got here there were 119 preschool programs. I took a look at them, and there were quite a few of them that were failing according to their own evaluation--not my evaluation, their own evaluation. We were able to get that down to 69 programs. There are 69 preschool programs at the present time. Here is the interesting part of that: Only eight of those are under the Department of Education. Sixty-one of them are in other departments. It seems like we could have consolidation and maybe some elimination of duplication.

Also, we have the States and the local governments coming to us and saying: We are out of money. We need money, and we don't have any money. We cannot afford to help them that way.

I have put in a bill to help them collect the sales tax already due them, and this is the marketplace fairness bill that would take care of their infrastructure and their jobs. So I hope everyone will take a look at that.

Finally, another solution would be the Buy Back America Bonds that I spoke about just a little while ago. If everybody bought some bonds, that could reduce the amount of debt held by foreign countries; that would help us and then that would reduce the amount of spending by an equal amount. There are solutions out there. It is time we got busy on them.

I thank the supercommittee for their work and ask everybody to pay attention to whatever they come up with.

I yield the floor.