Military Spouse Job Continuity Act of 2011

Mr. President, the National Defense Authorization Act, NDAA, that was enacted into law last December contained several deeply troubling provisions related to the indefinite detention of individuals without charge or trial. These provisions undermine our Nation's fundamental principles of due process and civil liberties. I strongly opposed these provisions during last year's debate, and believe that we must eliminate and fix those flawed provisions. Toward that end, I voted last night in favor of the amendment offered by Senator Feinstein, which clarified that our Government cannot detain indefinitely any citizen or legal permanent resident apprehended in the United States. It is my hope that this is a positive step forward in our efforts to undo some of the damage from last year's NDAA.

But our work is not done. As I have stated before, I believe that the vital protections of our Constitution extend to all persons here in the United States, regardless of citizenship or immigration status. That is why I cosponsored an amendment filed by Senator Mark Udall that would go beyond the scope of the Feinstein amendment to extend the protection against indefinite detention to any person within the United States. I look forward to working with Senator Udall and others in our continuing efforts to improve the law in this area.

I am fundamentally opposed to indefinite detention without charge or trial. I fought against the Bush administration policies that led to the current situation, with indefinite detention as the de facto policy. I opposed President Obama's executive order in March 2011 that contemplated indefinite detention, and I helped lead the efforts against the detention-related provisions in last year's NDAA. Simply put, a policy of indefinite detention has no place in the justice system of any democracy let alone the greatest democracy in the world.

The American justice system is the envy of the world, and a regime of indefinite detention diminishes the credibility of this great Nation around the globe, particularly when we criticize other governments for engaging in such conduct, and as new governments in the midst of establishing legal systems look to us as a model of justice. Indefinite detention contradicts the most basic principles of law that I have pledged to uphold since my years as a prosecutor and in our senatorial oath to defend the Constitution. That is why I have opposed and will continue to oppose indefinite detention.

Last December, Senator Feinstein introduced the Due Process Guarantee Act, which was at the core of her amendment to this year's NDAA. Both the Due Process Guarantee Act and Senator Feinstein's amendment make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention. In February, I chaired a hearing to examine the Due Process Guarantee Act, and the Judiciary Committee heard testimony from witnesses who asserted that no individual arrested within the United States should be detained indefinitely regardless of citizenship or immigration status. I wholeheartedly agree, and I believe that the Constitution requires no less.

The notion of indefinitely imprisoning American citizens is the most striking, but to me the Constitution creates a framework that imposes important legal limits on the Government and provides that all people in the U.S. have fundamental liberty protections. That is why I have cosponsored Senator Udall's amendment, which provides expansive protections against indefinite detention and fixes this unwise policy for all people. As I said before, though, I view the adoption of Senator Feinstein's amendment as a positive first step towards this goal.

During last night's Senate floor debate on Senator Feinstein's amendment, however, some made fundamentally flawed legal arguments and interpretations. As chairman of the Senate Judiciary Committee, I feel it is important to set the record straight.

According to those who had opposed our efforts and support indefinite detention, Senator Feinstein's amendment should somehow be read as authorizing the indefinite detention of United States citizens captured on U.S. soil. They contended that the Supreme Court in Hamdi v. Rumsfeld held that the Authorization for the Use of Military Force (AUMF) expressly authorized the indefinite detention of citizens, regardless of where they were apprehended. This assertion is flatly wrong, entirely unsupported by the actual text of the opinion and, I believe, contrary to the Constitution.

Much of last night's debate centered on the language in Senator Feinstein's amendment that prohibited the ``detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention.'' Senators who had opposed our remedial efforts and support indefinite detention asserted that the Supreme Court in Hamdi concluded that the AUMF was an ``explicit authorization'' of such detention even for citizens captured in the U.S. and that the AUMF was an act of Congress that fulfills the exception in the Feinstein amendment. The Senators ignore the fact that the text of the AUMF contains no reference whatsoever to the detention of individuals without charge or trial, and certainly no express reference to or authority for the detention of citizens in such a manner. Moreover, nowhere in the plurality or dissenting opinions in Hamdi do any of the Justices state that the AUMF expressly authorizes the detention of citizens without charge or trial.

The preexistence of the AUMF does not fulfill the requirement that the amendment seeks to create and that requires express congressional authorization of exceptional authority after the adoption of the Feinstein amendment. Senator Feinstein did not intend to write and the Senate did not intend to pass a nullity. If this opposition argument were right, the amendment changed nothing.

Senator Levin acknowledged in his remarks last night that the ``Supreme Court in Hamdi held that the existing authorization for use of military force does address this issue and does explicitly, in their words, authorize detention of United States citizens in that situation which was on the battlefield in Afghanistan.'' (emphasis added) The Hamdi case did not address and did not expressly authorize the indefinite detention of U.S. citizens apprehended in the U.S. As Senator Feinstein and Senator Durbin have pointed out, the Hamdi ruling was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.''

The substance of the Supreme Court's legal analysis is important here, and the attempts to gloss over the actual text of the Hamdi opinion cannot go unchecked. The starting point of the Court's analysis in this regard was the text of the Non-Detention Act, codified at 18 U.S.C. Section 4001(a), which states that ``no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.'' The Hamdi court then turned to whether the AUMF constituted an act of Congress within the scope of this exception, such that Hamdi's detention would be authorized. In her plurality opinion, Justice O'Connor concluded that the answer was yes, but she made certain to circumscribe carefully the scope of that ruling by saying ``we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe,'' i.e. ``individuals who fought against the United States in Afghanistan as part of the Taliban.'' Stated simply, the Hamdi decision does not stand for the proposition that the AUMF expressly authorizes the indefinite detention of U.S. citizens captured on U.S. soil.

Although last night's debate on the Hamdi decision focused largely on the

statutory authority to detain individuals, we must also not lose sight of other aspects of that opinion regarding the nature and duration of law of war detention, and how changing circumstances might warrant re- examination of the authority for such detention. Last night, Senator Graham stated that Hamdi's imprisonment ``could last for the rest of his life because the law of war detention can last for the duration of the relevant conflict.'' Although I do not necessarily disagree that law of war detention has historically been viewed as appropriate for the duration of the relevant conflict, this statement begs the question of when and how the duration of the relevant conflict is determined.

In her opinion in Hamdi, Justice O'Connor stated that the AUMF justified detention as part of the exercise of necessary and appropriate force ``if the record establishes that United States troops are still involved in active combat in Afghanistan'' against Taliban combatants. Significantly, Justice O'Connor wrote that ``if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.'' Accordingly, as we wind down our combat operations in Afghanistan, Congress and the courts should consider carefully how those changing circumstances might affect the legitimacy of so-called law of war detention authority under the AUMF.

I also continue to be deeply disturbed by the mandatory military detention provisions that were included in last year's NDAA through Section 1022. In the fight against al Qaeda and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need not limit those tools, as was required by this law. That is why the Secretary of Defense, Attorney General, Director of the FBI, and Director of National Intelligence all objected to this section and it was modified to require the President to produce procedures to determine who meets the definition of a person subject to mandatory military detention. I appreciate that the President took an aggressive approach in these procedures to preserve the flexibility of law enforcement, as well as military and intelligence professionals, to investigate and prosecute alleged terrorists.

However, these procedures do not mitigate my concerns that the mandatory military detention requirements are overly broad and threaten core constitutional principles. Once sacrificed, our treasured constitutional protections are not easily restored. After all, the policy directive of this President can be undone by a future administration. That is why I have cosponsored Senator Udall's amendment to this year's NDAA that would repeal this ill-advised authority.

In Hamdi, Justice O'Connor stated unequivocally that ``[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.'' We can never forget that the power of our Federal Government is bound by the Constitution. The detention provisions enacted through last year's NDAA are deeply troublesome. They do not represent Vermont values, they do not represent American values, and they have no place in this world. Moving forward, I urge all Senators to join in support of upholding the principles of our Constitution, protecting American values, and championing the rule of law. We need a bipartisan effort to guarantee that the United States remains the model for the rule of law to the world.

Mr. President, I rise today to discuss several issues of importance to the future of our Nation's military. The National Defense Authorization Act before us this year will affect the size and strength of the U.S. Armed Forces and the resources and programs available to our service members and their families.

According to GEN Martin Dempsey, Chairman of the Joint Chiefs of Staff, ``capability is more important than size.'' As the size of our military begins to decrease, there is more need than ever to ensure that they have the right equipment to fulfill their missions. Therefore, I am pleased that the committee has given the Pentagon the authority through this bill to negotiate multiyear procurements for the military's workhorse, the CH-47 Chinook, and for the V-22 Osprey and the unique capabilities it brings to the field. I also want to note my frustration with the Army's lack of strategic and long-term thinking related to armored combat vehicles. The Army's desire to temporarily cease production of tanks and Bradley fighting vehicles without long- term plans as to what will replace them is nonsense. These proposals, should they be approved, jeopardize the Nation's combat vehicle industrial base, our national security and the livelihoods of many individuals throughout the Nation.

Small businesses are the backbone of the economy both in Pennsylvania and across the Nation. Given their importance, I am committed to advocating for the needs of businesses, particularly women and minority business enterprises, in the U.S. Senate. My amendment, No. 2986, would ensure that subcontractors are aware of their inclusion on bids for Federal contracts and establish a system to report fraudulent procurement practices.

In order to secure government contracts, big companies routinely list small businesses as subcontractors on their bids in order to strengthen their applications without the intention of actually giving the work to the named subcontractor. This especially happens with women and minority owned businesses. Currently, there is no legal requirement to notify subcontractors of their inclusion on Federal bids and no way to report this. This is taking business away from hard working men and women and it is time for this fraudulent activity to end.

Amendment No. 2986 would prohibit prime contractors from using small businesses as straw men to win government bids. First, it would require that subcontractors identified on a solicitation for a competitive proposal are notified by the prime contractor before the application is submitted. Second, it would establish a reporting mechanism that allows subcontractors to report any fraudulent activity. This amendment is in direct response to concerns raised by my constituents, Alexander Nicholas of the Western Pennsylvania Minority Supplier Development Council, and Craig Bingham, owner of DCI Logistics in Carnegie, PA. I ask my colleagues to join me in support for promoting transparency and accountability in Federal procurement processes and support amendment No. 2986.

Another long-term objective that the Nation and our military must recognize is the need for a secure and reliable source of strategic materials, such as rare earths. In filing amendment No. 2994 to the fiscal year 2013 National Defense Authorization Act, I want the Department of Defense to conduct a cost-benefit analysis on the feasibility of recycling heavy rare earth elements from fluorescent lighting waste. New innovations by Pennsylvanian businesses have taken the theory of recycling rare earths and made it a reality. With China controlling 95 percent of the world supply of rare earth elements, the United States must look at methods, including the recycling of products, to increase our domestic supply of rare earths.

Investing in alternative fuels and energy technology is also critical to sustaining our national defense capabilities in the 21st century. DOD is the largest single user of oil in the world and their fuel bill was more than $17 billion in fiscal year 2011. DOD recognizes that this type of expenditure, not to mention where we have to go in the world to get that oil, is unsustainable. That is why they began investing in alternative fuels and energy technology under Secretary Rumsfeld back in the early 2000s. I think it would be a mistake to disinvest in that effort now when the return on investment could be so beneficial to our country.

As they are currently written, sections 313 and 2823 of the NDAA put unnecessary restrictions on our military's ability to invest in alternative fuels, which could prove harmful to our national defense capabilities and our economy by keeping our military dependent on imported fossil fuels. I think it is very important that we fix sections 313 and 2823 with Senator Udall's amendment 2985 and Senator Hagan's amendment 3095, respectively.

Currently, DOD invests only a small portion of their budget in alternative fuel development but this is an important investment for American businesses that focus on alternative fuel

development and energy technology research. Therefore, our Nation benefits three times from the fruits of these investments: once by improving our national defense capabilities, a second time by supporting jobs in the energy research and development sector, and again because these innovations can be applied in the marketplace benefiting all Americans. It is a smart investment to keep our military strong and develop 21st century energy solutions that we can use here and export abroad. Therefore, I support my colleagues' amendments to strike sections 313 and 2823 from the NDAA.

Lastly, we must take care of the military families who continue to sacrifice without complaint. As chairman of the Joint Economic Committee, I studied the economic effects that the military lifestyle has on the earnings of military spouses. In 2010, the unemployment rate for military wives was 15.0 percent compared to 7.3 percent for civilian wives. One cause of this disparity may have to do with the numerous relocations military families undergo. In this same time period, 24.1 percent of military wives moved across State lines, compared with only 2.4 percent of civilian wives. Frequent moves coupled with military spouses holding jobs that require State-level relicensing create barriers that spouses must overcome when seeking employment. Therefore, I introduced S. 697, the Military Spouse Job Continuity Act, which would provide a $500 tax credit for military spouses who need to renew or transfer their professional licenses or certifications due to military relocations. While this specific bill cannot be taken up today for procedural reasons, I ask my colleagues to join me in a sense-of-the-Senate amendment recognizing that we must work with the Pentagon and State and local governments to reduce the employment barriers for military spouses, without whom we would not have the superb military we have today.

I ask my colleagues to join me in supporting these important amendments.

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

Mr. President, I call up now a list of 17 amendments which have been cleared by myself and Senator McCain: Wyden amendment No. 2959; Bingaman amendment No. 2984; Grassley amendment No. 3079; Barrasso amendment No. 3082; Vitter amendment No. 3087, as modified by changes at the desk; Klobuchar amendment No. 3102; Klobuchar amendment No. 3105; Murkowski amendment No. 3135; Warner amendment No. 3145; Collins amendment No. 3196, as modified by changes at the desk; Barrasso amendment No. 3198; Klobuchar amendment No. 3234; Reid amendment No. 3244; McCain amendment No. 3247, as modified by changes at the desk; Alexander amendment No. 3258; Levin amendment No. 3280; Begich amendment No. 3290.

I ask unanimous consent that these amendments be considered en bloc, the amendments be agreed to, and the motion to reconsider be laid upon the table.

I thank Senator McCain. He very humorously, with his great, good nature, kind of joshes himself comparing his patience to mine. My standard is not the one that anybody wants to follow around here; We will never get anything done.

He is more than patient, and I am very grateful that he is standing there in that ranking position and sitting right in that ranking position. I hope he stays in that ranking position in some committee at least for many, many, many years--in the ranking position.

I join in that too.

Now, we have to close. I don't know if we have the closing. We do.

Mr. President, I would like to thank the majority leader again for his encouragement of this process. As I said before, I think it should be an example for addressing further pieces of legislation before this body. It has been very tough. There have been hundreds of amendments that have been filed, many of which have been disposed of.

I believe on Monday night we could complete this legislation with the cooperation of all Members so that this body could move on to other business. I want to thank again my friend, the chairman, who continues to show unlimited patience, which is a quality that I do not possess.

I suggest the absence of a quorum.

The amendments have been cleared on our side.

Mr. President, I thank the Presiding Officer for his patience and long period of time in the chair today. We, obviously, have a couple of members in the media who have no other lives.

I thank our distinguished chairman. Obviously, you have been here a long time.

I also appreciate our staffs who, again, show that work-release programs are quite successful in the Senate. Thank you very much.